Competition Act 1998

66 Monopoly investigations: general

(1) Section 44 of the [1973 c. 41.] Fair Trading Act 1973 (power of the Director to require information about monopoly situations) is amended as follows.

(2) In subsection (1), for the words after paragraph (b) substitute— “the Director may exercise the powers conferred by subsection (2) below for the purpose of assisting him in determining whether to take either of the following decisions with regard to that situation.

(3) After subsection (1) insert—

“(1A) Those decisions are—

(a) whether to make a monopoly reference with respect to the existence or possible existence of the situation;

(b) whether, instead, to make a proposal under section 56A below for the Secretary of State to accept undertakings.”

(4) For subsection (2) substitute—

“(2) In the circumstances and for the purpose mentioned in subsection (1) above, the Director may—

(a) require any person within subsection (3) below to produce to the Director, at a specified time and place—

(i) any specified documents, or

(ii) any document which falls within a specified category,

which are in his custody or under his control and which are relevant;

(b) require any person within subsection (3) below who is carrying on a business to give the Director specified estimates, forecasts, returns, or other information, and specify the time at which and the form and manner in which the estimates, forecasts, returns or information are to be given;

(c) enter any premises used by a person within subsection (3) below for business purposes, and—

(i) require any person on the premises to produce any documents on the premises which are in his custody or under his control and which are relevant;

(ii) require any person on the premises to give the Director such explanation of the documents as he may require.

(3) A person is within this subsection if—

(a) he produces goods of the description in question in the United Kingdom;

(b) he supplies goods or (as the case may be) services of the description in question in the United Kingdom; or

(c) such goods (or services) are supplied to him in the United Kingdom.

(4) The power to impose a requirement under subsection (2)(a) or (b) above is to be exercised by notice in writing served on the person on whom the requirement is imposed; and “specified” in those provisions means specified or otherwise described in the notice, and “specify” is to be read accordingly.

(5) The power under subsection (2)(a) above to require a person (“the person notified”) to produce a document includes power—

(a) if the document is produced—

(i) to take copies of it or extracts from it;

(ii) to require the person notified, or any person who is a present or past officer of his, or is or was at any time employed by him, to provide an explanation of the document;

(b) if the document is not produced, to require the person notified to state, to the best of his knowledge and belief, where it is.

(6) Nothing in this section confers power to compel any person—

(a) to produce any document which he could not be compelled to produce in civil proceedings before the High Court or, in Scotland, the Court of Session; or

(b) in complying with any requirement for the giving of information, to give any information which he could not be compelled to give in evidence in such proceedings.

(7) No person has to comply with a requirement imposed under subsection (2) above by a person acting under an authorisation under paragraph 7 of Schedule 1 to this Act unless evidence of the authorisation has, if required, been produced.

(8) For the purposes of subsection (2) above—

(a) a document is relevant if—

(i) it is relevant to a decision mentioned in subsection (1A) above; and

(ii) the powers conferred by this section are exercised in relation to the document for the purpose of assisting the Director in determining whether to take that decision;

(b) “document” includes information recorded in any form; and

(c) in relation to information recorded otherwise than in legible form, the power to require its production includes power to require production of it in legible form, so far as the means to do so are within the custody or under the control of the person on whom the requirement is imposed.”

(5) The amendments made by this section and section 67 have effect in relation to sectoral regulators in accordance with paragraph 1 of Schedule 10.